In the recent German case of Kratzer v R+V Allgemeine Versicherung AG C-423/15, the European Court of Justice (ECJ) clarified that the protection under the Framework and Equal Treatment Directives (the Directives) does not extend to job applicants where those applicants apply for a job solely to seek compensation, rather than to genuinely gain employment.

The facts

R+V Allgemeine Versicherung (R+V) advertised several graduate positions in various fields of expertise. Mr Kratzer (the Claimant) applied for the trainee solicitor position, citing his legal and managerial experience, which fulfilled the criteria set out in the advertisement.

The Claimant received a rejection in response to his application. As a result, he claimed €14,000 in compensation as he believed that he had suffered age discrimination. R+V explained to the Claimant that its rejection was generated automatically (which was not its intention) and invited him to interview for the position he had applied for. The Claimant declined this invitation. He stated that his future with R+V was conditional on R+V paying him the €14,000 sought.

After learning that R+V offered all four of the trainee posts to female candidates, the Claimant claimed a further €3,500 for discrimination because of sex.

The issue

The German Labour and Regional Labour courts rejected the Claimant's claim and appeal. The Claimant further appealed to the Federal Labour Court who stayed the proceedings while it awaited answers from the ECJ on the following questions:

1. Does Article 3(1)(a) of the Framework Directive and Article 14(1)(a) of the Equal Treatment Directive provide protection against discrimination to an individual whose application makes it clear they are not seeking recruitment or employment, but just the status of a job applicant in order to bring a claim for compensation?
2. If so, should this be considered an abuse of rights under EU law?

The court's decision

The ECJ referred to Article 3(1)(a) of the Framework Directive and Article 14(1)(a) of the Equal Treatment Directive which both extend protection to those "seeking employment".

Unsurprisingly, it stated that, where an individual makes an application for employment with the sole aim of gaining the status required to enable him to claim compensation for discrimination, the individual will not come within the scope of the Directives as he would not genuinely be "seeking employment". Therefore, the Claimant could not rely on the protection offered by the Directives.

The ECJ went on to further clarify that the Claimant could not be considered a "victim" of discrimination or a "person injured" in these circumstances as, if he did not want the job, he had not suffered "loss" or "damage" within the meaning of the Directives.

Whilst the ECJ noted that it was more suitable for the national courts to consider whether the Claimant's conduct was abusive, it offered its opinion, stating there were no grounds to believe this was the case here.

Comment

This case helpfully clarifies that where an applicant has no legitimate interest in the employment or occupation advertised, he cannot benefit from the Directive's protection. The ECJ's commentary also reaffirms that national courts should set clear expectations of how they will treat claims if an individual attempts to abuse the protections offered by EU law.

It also serves as an important reminder that employers should adopt a cautious approach to its application of automated selection criteria to avoid the same pitfalls (and prevent applicants from claiming discrimination whether this was intentional or not). It is rare for individuals to make applications solely to avail themselves of the ability to bring a claim, therefore employers should not reject job applications exclusively on the basis of such suspicions.